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IN THE HIGH COURT OF KARNATAKA
Alok Aradhe, Nataraj Rangaswamy, JJ.
Chandrashekar - Appellants
Vs.
The Divisional Office, The Oriental Insurance Co. Ltd. and Ors. - Respondent
Miscellaneous First Appeal No. 2805 of 2015 (MV-I)
Decided On : 25-01-2021
Motor Vehicles Act, 1988 – Section 166 – Compensation – Per contra – Appeal is listed today for orders, same is taken up for final disposal with consent of learned Counsel for parties – Appeal is filed by claimant seeking enhancement of compensation awarded by M.A.C.T. in terms of judgment and award – Parties will henceforth be referred to as they were arrayed before Tribunal –Held, Hence, to this extent the impugned judgment and award deserves to be modified and claimant is entitled to recover entire compensation from insurer of offending vehicle who is entitled to recover 20% of compensation that may be determined by this Court from insurer of lorry bearing – In so far as claim for compensation is concerned, as rightly contended by learned Counsel for claimant in similar circumstances, this Court has accepted notional income – Though PW. 2 was not the doctor who treated the claimant, yet he too who was a qualified medical practitioner and Consultant Orthopedic Surgeon who was part of the Orthopedic – Similarly, as held by Hon'ble Apex Court in the case compensation for fracture of weight bearing bones should be assessed for each fracture and compensation awarded by the Tribunal thus deserves to be marginally increases – Appeal is allowed.
JUDGMENT :
Nataraj Rangaswamy, J.
1. Though this appeal is listed today for orders, the same is taken up for final disposal with the consent of the learned Counsel for the parties.
2. This appeal is filed by the claimant seeking enhancement of the compensation awarded by the M.A.C.T. at Bengaluru (SCCH-09) (hereinafter referred to as 'the Tribunal') in M.V.C. No. 6705/2011 in terms of the judgment and award dated 19.11.2013. Parties will henceforth be referred to as they were arrayed before the Tribunal.
3. The claim petition disclosed that on 13.07.2011, the claimant was traveling in a bus bearing Registration No. KA-18-F-393 (henceforth referred to as 'the offending vehicle') which dashed against a parked lorry bearing Registration No. MH-06-AQ-7911 at about 11.45 p.m., near Attibele Check post. The claimant was shifted to Hosmat Hospital, Bengaluru where he underwent treatment. The claimant alleged negligence on behalf of the offending vehicle and filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs. 5,00,000/- from the owner and insurer of the offending vehicle.
4. The claim petition was contested by the insurer of the offending vehicle which disputed the averments of the claim petition. It contended that the driver of the offending vehicle did not possess a valid license. It also claimed that the petition was bad for non-joinder of necessary parties as claimant has failed to array the owner and insurer of the lorry bearing Registration No. MH-06-AQ-7911. The owner of the offending vehicle also contested the claim petition alleging negligence on the part of the driver of the lorry and alleged it was parked in the middle of the road without switching on the hazard lights.
5. Based on these rival contentions, the Tribunal framed issues and set down the case for trial. The claimant was examined as PW. 1 and the Doctor was examined as PW. 2 and they marked documents as Exs. P1 to P14. The owner/insurer of the offending vehicle did not led evidence and did not mark any documents.
6. Based on the oral and documentary evidence, the Tribunal held that the accident occurred due to the composite negligence of the drivers of the offending vehicle and the lorry and fixed the negligence on the part of the driver of the offending vehicle at 80% and at 20% in respect of the driver of the lorry. Insofar as claim for compensation is concerned, the Tribunal noticed from Ex. P6 (Wound Certificate) that the claimant had suffered Type III open fracture of the left proximal tibia and fibula. The Tribunal also noticed discharge summary (Ex. P7) issued by Hosmat Hospital which showed that the claimant had undergone surgery on 14.07.2011 for wound debridement with external fixator of left tibia and repair of posterior tibia artery and vein. He also went another surgery for wound debridement and SSG of left tibia on 18.07.2011. He also underwent skin grafting and later, on 20.12.2011, he underwent a surgery for ilizarov fixator for left tibia. The Tribunal noticed the evidence of PW. 2 who deposed that the claimant had undergone multiple surgeries and fracture had got united. PW. 2 stated that the claimant suffered persistent foot drop with diminished sensation in the left ankle and foot. He deposed that the disability to the left lower limb was 75% while disability to the whole body at 25%.
7. The Tribunal considered the notional income of the claimant at a sum of Rs. 5,250/- per month and awarded the following compensation:
| Sl. No. | Heads under which compensation awarded | Amount in Rupees |
| 1 | For pain and suffering | 70,000/- |
| 2 | For diet, conveyance and attendant charges | 3,000/- |
| 3 | For loss of income during laid up period and rest for three months | 15,750/- |
| 4 | For loss of amenities and unhappiness in life | 60,000/- |
| 5 | For discomfort and mental stress in life | 6, |
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